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Have you seen the news recently? The Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) announced new efforts that will result in the forcible separation of families seeking protection in the United States under established U.S. law. Not only that, the Trump Administration announced that it will increase criminal prosecutions of parents attempting to enter the United States illegally, even those seeking political asylum in the United States, in its effort to tighten immigration enforcement.
In a recent speech, Attorney General Jeff Sessions stated that going forward, the United States would have a zero tolerance policy, suggesting that anyone crossing the border unlawfully into the United States will now be prosecuted. Even those seeking asylum in the United States. I quote:
“If you’re smuggling a child, then we’re going to prosecute you, and that child will be separated from you, probably, as required by law. If you don’t want your child to be separated, then don’t bring him across the border illegally.”
It is a bit ironic that on the very day First Lady Melania Trump made a public statement about cherishing and protecting children, the Attorney General was talking about U.S. policy of separating parents from children for immigrant families seeking asylum status in the United States. That’s right, when Melania Trump said that “children deserve every opportunity to enjoy their innocence”, Attorney General Sessions declared that U.S. Customs and Border Protection (“CBP”) will arrest parents, and thereafter separate them from their children.
With then candidate Trump putting immigration front and center in the 2016 election, and now President Trump doing the same ahead of this year’s midterm elections, I suppose no one should be surprised by any of this.
Does that mean if a family presents themselves at a proper border crossing point and applies for political asylum, seeking protection from unfettered criminal violence in their home country, that they won’t be prosecuted or separated?
Individuals who arrive at the our border, without proper documentation, are often subject to fast-track deportation processes called “expedited removal” or, in some cases, “reinstatement of removal” (if they’ve been removed from the United States previously). In each instance, however, the law requires that these individuals receive a preliminary screening interview with a U.S. asylum officer if they express a fear of persecution if they were returned to their country of origin.
Over the past several years, however, federal law enforcement officials have been very vigorous in prosecuting migrants for entering the United States without permission or for reentering the country without permission after a prior deportation or removal order. Indeed, tens of thousands of individuals are subjected to criminal prosecution for these crimes every year. I understand this. We are a nation of laws.
However, the United States is a signatory to the 1951 Convention and Protocol Relating to the Status of Refugees, which is supposed to prevent nations from penalizing individuals requesting protection from persecution or torture in their country of origin. In 2015, the Department of Homeland Security’s own Inspector General noted that prosecuting those “who express fear of persecution or return to their home countries” may be inconsistent with and may violate U.S. treaty obligations.
According to the Office of Refugee Resettlement, a division of the Department of Health and Human Services, more than 700 children have been taken from adults claiming to be their parents since October, 2017, including more than 100 children under the age of 4. The Office of Refugee Resettlement takes custody of children who have been removed from migrant parents. The American Civil Liberties Union filed a lawsuit in February to challenge the practice of family separation.
We need to find the proper balance of appropriately and humanely enforcing our immigration laws, protecting individuals from being returned to their home country, and preventing families from being forcibly separated while the U.S. immigration process plays itself out. Right now, all this new policy is doing is making criminals of people who are simply seeking refuge from violence in their home country, and separating already stressed families, including very young and vulnerable children. This is unacceptable.